Effort by religious schools to halt enforcement of Alberta’s GSA protection law tossed out by Medicine Hat judge

An effort by the so-called Justice Centre for Constitutional Freedoms to get a court injunction to halt enforcement of the Alberta law that prevents schools from informing parents when students join gay-straight alliances fell short in a written ruling of the Alberta Court of Queen’s Bench in Medicine Hat yesterday.

While the Calgary-based JCCF acting on behalf of a group of 26 religious schools and a few parents of students that attend them awaits a ruling on its challenge of the constitutionality of the law, Madam Justice Johnna C. Kubik not only tossed its effort to get an injunction against application of the law but awarded costs to Government of Alberta.

In her ruling, which was distributed this morning on Twitter by the court, Justice Kubik didn’t seem to be particularly moved by the incendiary claims made by the group that gay straight alliances in Alberta schools are “ideological sexual clubs” that attempt to convert innocent students to a gay lifestyle and encourage children to keep secrets about their activities from their parents.

Instead, she concluded that stopping application of the law preventing schools from informing parents if their children join a peer group intended to create a safe space for LGBTQ+ students “would be considerably more harmful than temporarily limiting a parent’s right to know and make decisions about their child’s involvement in a GSA.”

In her ruling, Justice Kubik dismissed the argument by the litigation group associated with social conservative causes that Alberta’s 2017 Act to Support Gay-Straight Alliances, school clubs mandated in a 2015 Progressive Conservative law, infringed on the religious freedom of the parents and schools it represented.

In this regard, she wrote, “I am satisfied there is no serious constitutional issue to be tried. GSAs are voluntary student organizations. Children are not required to participate in them. The Act in no way restricts the right of parents or schools to continue to impart their religious and moral values to their children.”

In addition, she dismissed the idea there was any urgency to seek injunctive relief. The provisions of the NDP act “do not change the substance of what has been authorized by the law for the past three years,” Justice Kubik concluded in a reference to the original PC GSA law.

Evidence produced by the applicants that sexually explicit materials were used by GSAs was not supported by the testimony, Justice Kubik’s ruling said. “There is no evidence that any of these materials were ever promoted by the respondent or GSAs generally, or that the materials ever came into the hands of any students through a GSA. There is no evidence that there is a risk to the material being disseminated to students in GSAs.”

Alberta Education Minister David Eggen (Photo: David J. Climenhaga).

On the issue of the supposedly ideological nature of GSAs, Justice Kubik called affidavits submitted by parents “largely hearsay” that could not be shown to be attributable to participation in a GSA or lack of notification to parents.

She dismissed evidence tendered by JCCF affidavits from two sympathetic doctors in the United States, noting that the evidence of one was “in direct contradiction with the recommended and accepted diagnostic and treatment standards as established by the American Psychiatric Association and the American Academy of Pediatrics” and furthermore that “the underlying factual premise of his opinion is not proven.”

Of the other physician’s evidence, her ruling indicated, it suggested the psychiatrist was not really providing objective opinions for the purpose of assisting the court, and that her characterization of activism and political correctness “fails to recognize the legal reality of Alberta and Canada.” Justice Kubik therefore rejected that evidence that GSAs cause harm entirely.

Justice Kubik also dismissed the applicants’ claims that continued funding and accreditation of their schools were at risk because of the provisions of the Act. The government argued, she noted, that complying with the act by attesting they will obey its provisions for the formation of GSAs in their schools is only “a demonstration that the schools recognize the coexistent rights of others.”

Moreover, she wrote, summarizing the government’s arguments, “there is no immediate risk of losing funding or accreditation as the Act itself provides multiple steps for dealing with non-compliance, including investigations, inquiries and the imposition of policies consistent with the Act.”

“There is no evidence which demonstrates a real, concrete and unavoidable risk that the schools will lose accreditation or funding,” Justice Kubik concluded. As a result, she ruled, “there is no reason to take prohibitive steps to prevent defunding or de-accreditation.”

In media reports, Education Minister David Eggen quickly hailed the ruling as a victory “for justice and equality in the province of Alberta.” In the afternoon, he Tweeted: “I want Alberta’s youth to know that our government stands with you and we will continue to stand up for the rights of LGBTQ youth.”

As for the United Conservative Party led by Jason Kenney, well known for his social conservative views, all that was heard from them was … crickets.

JCCP President John Carpay, a Calgary lawyer, is a former Reform Party and Wildrose Party candidate. The organization has represented a long list of social conservative clients over the years.

Could a rude Tweet about a ruling distributed by a court be found in contempt?

On one hand, this is a positive step, bringing rulings directly to citizens and cutting out media interpretation that omits facts and may offer inaccurate or misleading interpretations of why a court has reached a decision.

On the other, though, the potential both for reflexive attacks on the courts for decisions and judges’ comments by unsophisticated commentators is now much greater, suggesting social media users could find themselves in conflict with the courts.

Face it, Twitter is designed to be anti-social media. It’s perfect for the sharp riposte, the disrespectful return, the quarrelsome countercheque, or the churlish reply. It provides a mechanism, at the click of an onscreen button, for unwitting or thoughtless commentators to find themselves in contempt of court.

The average social media troll may not realize it, but that’s a potentially very serious matter. I would suggest the court needs at the very least to publish guidelines and advisories for those who wish to comment negatively online on the decisions of the court, and perhaps to apply a little leniency to dopey citizens who may not fully appreciate the great powers of the judiciary.

I’m not sure that either the courts or the typical Twitter troll really understands what they could be letting themselves in for as a result of this development.

J.E. Molnar

June 28th, 2018

Let’s hope this well-reasoned ruling by the court helps Alberta finally cross the Rubicon whereby GSAs are now a permanent fixture at all schools, irrespective of religion. Dragging social conservatives and evangelicals into the 21st century shouldn’t have to be so difficult or politically exasperating.

Bill Malcolm

June 28th, 2018

Twitter is a commercial product that not everyone uses. I don’t, nor does my extended family, nor the Millenials where I used to work, or any of my immediate friends. Everyone with a thinking brain now rejects it, some only after having been burnt. All it does is create conflict.

One wonders if the Court regards these tweets as official public notification. I certainly hope not.

Your warnings about possible contempt of court responses will not apply to Americans, for example. No doubt trolls from south of the border will soon discover what fun they can have. It is unlikely that the Court’s administrators have thought their new practice through.

pogo

June 28th, 2018

Anyone who doesn’t vote liberal or NDP after seeing our Harper pry himself away from his Austrian roost to make mischief in the dementia ward formerly known as the Whitehouse? Well, they need a paddlin’! It’s left up to guys like you to dig deep and connect the Machiavellian right wing to the horrendous travesty that is unfolding in the country that lead the opening of the world to post colonialism. As flawed as they are they don’t deserve this! As flawed as we are we don’t either! Get on it!

David

June 29th, 2018

Kenney seems suspiciously quiet about this. It probably doesn’t help the court case didnt go the way he wanted, but he has probably also figured out by now shaing any of his candid thoughts on social issues before the next election will not help his chances. However Kenney has been consistent in previous statements before he came back to Alberta so we (and his supporters too) have a good idea where he really stands on this.

The donors to the case against GSA’s must be quite upset that not only did they lose, but they now have to pay the governments legal costs. I think the judge was trying to send thsm a message about poorly founded and somewhat frivolous legal challenges. Will they heed the message or ignore it any continue to flush their money down the drain?

David Climenhaga

Bob Raynard

June 29th, 2018

David’s response not withstanding, I was briefly delighted to see the court award the government costs. Sadly my happiness was literally cut in half after a moment’s reflection.

When you claim a charitable donation on your income tax, the first $200 comes with a reduced credit. Once the initial $200 threshold is crossed, you get a 29% credit federally and 21% credit provincially (Alberta rate), giving a total credit of 50%.

Since the JCCF is a registered charity, the JCCF donor who steps up and offers to pay the government’s cost will get half of his money back – from the government! For the government to truly avoid paying any of the court costs the judge needed to order the JCCF to pay twice the court costs.